Psychological Injuries and Causation

Published on October 17, 2016 / Pain & Suffering

If I had a troubled life before the crash, can I claim damages for my emotional and physical troubles after the crash? How will a court decide which of my problems arose out of the crash and which arose out of other personal challenges?

In the recent decision Birkich v Cantafio (2016 BCSC 40) the court discussed the case of a young woman who was hit by a truck while crossing the road. The plaintiff was 17 at time of the incident, and had lived a life marked by significant psychosocial events and stressors, including sexual abuse, self-harm, and leaving home at age 13. The incident caused her a number of contusions and abrasions which healed relatively quickly, but also left her with ongoing symptoms of headaches, dizziness, and impaired cognition. These issues together with her ongoing life stressors, including unexpectedly becoming pregnant by her abusive boyfriend, led to serious depression.

Essentially, the court was left to determine whether the plaintiff was a resilient young woman who had been on a path to a productive and healthy life and was derailed in that effort by the incident, or whether she was struggling in any event and was destined to “crumble under the weight of her life’s circumstances” despite the incident. The defence argued the latter, saying that the plaintiff simply had not proved that the defendant caused her depression, anxiety, or cognitive dysfunction. After writing the following, Justice Betton went on to award the plaintiff $125,000 in non-pecuniary damages, citing primarily her ongoing headaches, dizziness, and other ongoing cognitive/psychosocial issues:

[71] It is these noted difficulties in separating out the consequences of brain injury from those associated with psychological conditions, including depression and anxiety, which found, in part, the defence argument regarding causation. Essentially, the defence assertion is that the plaintiff would ultimately have suffered from the problems even if the motor vehicle incident had not occurred; that the post-incident events heaped on the pre-incident status would have led to the same end result. The critical flaw in this argument is that the incident was in fact a significant traumatic event that did result in a MTBI. There is no way to extract that from the circumstances or to say it plays no role in her current situation. Not surprisingly, no expert opinion supports the defence proposition, indeed they are to the contrary. In Thiessen, there was specific medical opinion accepted by the trial judge that the psychological conditions would have developed without the occurrence of the motor vehicle collision. There is no such evidence here.

[72] It is my conclusion that the constellation of psychological and cognitive injuries and sequelae are indivisible and that the injuries suffered in the motor vehicle incident were a necessary contributing cause for their development. Each of Drs. Travlos, Kaushansky and Rasmusen say that this is so. On the evidence before me, the plaintiff was functioning reasonably well in the weeks and months preceding the motor vehicle incident. Her history included many stressors with some emotional and behavioural consequences. In the period leading up to the motor vehicle incident, however, there is minimal evidence that she was suffering from any specific conditions. She was apparently happily engaged in her work and doing well at it. She was in her relationship with Mr. Lariviere and generally happy in it.

[73] It took the motor vehicle incident to initiate the constellation of symptoms that have plagued the plaintiff since. Certainly, her vulnerability pre-incident influenced the severity of the consequences and the subsequent events in the plaintiff’s life have had a negative impact on her symptoms and her function but, as noted by Chief Justice McLachlin in the quote in para. 63 above, “It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort.” That being so, the result in this legal context is clear.

Jillian graduated from the University of Victoria’s Faculty of Law in 2015 and was called to the bar of British Columbia in 2016. She used her time at UVic to spearhead a number of social justice initiatives, and to volunteer for Pro Bono Students of Canada. Jillian is from the Okanagan and obtained her English Honours degree at the University of British Columbia’s Okanagan campus.